Fourth Osco trial ruled out by prosecutors

Charges against Allen will not be pursued.

Charges against Allen will not be pursued.

December 21, 2006|PATRICK M. O'CONNELL Tribune Staff Writer

SOUTH BEND -- Prosecutors announced Wednesday they will not pursue a fourth trial in the 1990 Osco triple homicide case, deciding to dismiss murder charges against former store manager Christopher Allen. "We don't believe we have enough evidence to go forward and secure a conviction," St. Joseph County Prosecutor Michael Dvorak said. Allen has been tried three times for the murders of assistant manager Scott Dick, 29; pharmacist Tracy Holvoet, 25; and clerk Connie Zalewski, 43. The trio was gunned down in the early morning of Aug. 25, 1990, inside the store on Western Avenue in South Bend. Twice, including this summer, Allen's trials ended in a hung jury. Allen was convicted in 2002, but the verdict was overturned on appeal. Prosecutors said they made the "very tough decision" after considering statements from members of the two split juries. Members of the panels indicated they had difficulty reconciling a credible alibi witness with the presence of Allen's palm print on the store's exit door crash bar. "This decision was made reluctantly," said special prosecutor Michael McAlexander of Allen County, who was the lead prosecutor for all three trials. "It's not a happy decision, but we feel it is the right thing to do, legally and for the community." Allen's Indianapolis attorney, Kevin McGoff, said Wednesday that he has decided against weighing in on the prosecutors' decision. McGoff said he talked with Allen on Wednesday and that Allen also did not want to comment on the case. Phone and e-mail messages left with the victims' family members were not returned by Tribune deadline, although one family member and a former Osco employee said they preferred not to comment. In an interview with The Tribune on Tuesday before a decision had been announced, Phyllis Holvoet, the mother of victim Tracy Holvoet, said she wanted prosecutors to retry Allen. "I'm not gonna let it go," Holvoet said. The decision not to pursue another trial was a difficult one, prosecutors said, because of the opinions of victims' family members. But ultimately, they said, dismissing the charges against Allen was "the right thing to do." McAlexander said dropping the case after he had invested so much time and effort on it was "personally disappointing." "We don't like to see a case go away unresolved," McAlexander said. "The families are certainly disappointed, but win, lose or draw, it does not bring family back." Cost considerations The financial burden of holding another trial factored into the decision but was not a major reason prosecutors declined to take Allen back to court, Dvorak said. "It was a factor, but it was only one factor," Dvorak said. The third trial will have cost more than $121,000, the prosecutor's office said. Auditors have not completed a final tally of all costs, but public defenders, investigators, all public defender-related expenses and witness-related expenses cost $121,587.93. Jury costs and special prosecutor costs have yet to be added. The 2001 trial cost $115,000, and the 2002 trial $359,994, a jump attributed to increased defense attorney and jury fees. Jurors torn After polling jurors in all three trials, prosecutors determined that at least 11 out of 48 people, including jury alternates, voted Allen not guilty. The key, they said, was weighing the forensic evidence against a crucial piece of witness testimony. Forensic experts testified the palm prints on the store's exit door belonged to Allen. But Allen's ex-wife testified that Allen was home in bed in Indianapolis at the time of the murders. Sharries Garrett's testimony was consistent throughout the three trials, with the exception of specific times. In the absence of any new evidence, going forward with another trial was unlikely to result in a different verdict, Dvorak and McAlexander said. "As a prosecutor, you have to face reality," McAlexander said. Prosecutors skirted questions about whether they believe Allen, 43, was rightfully charged or whether someone else committed the crimes, saying their personal opinions on the case are not relevant. "Certainly the evidence we presented justified a finding of guilty," McAlexander said. "But we have to prove it beyond a reasonable doubt." Deadlocked Allen was fired as store manager for stealing about five months before the slayings. Allen was not charged until 1999, nine years after the murders, when then-Prosecutor Chris Toth filed the murder charges as part of his public vow to clear prominent cold cases. In 2001, Allen's trial, held in downstate Henry County because of pretrial publicity in St. Joseph County, ended in a hung jury. In 2002, Allen was convicted, but that verdict was overturned on appeal after he had served 576 days in prison. Dvorak's administration inherited the case when Dvorak defeated Toth in the 2002 election. Another Henry County jury deadlocked 6-6 this summer, McAlexander said. The three murder charges against Allen will be formally dismissed. Because two of his trials ended in a hung jury and his conviction was overturned on appeal, Allen does not face double jeopardy in the case and can be tried again if authorities ever uncover new evidence, Dvorak said. Both Dvorak and McAlexander said that possibility is remote because they believe all of the evidence relating to the case has been presented during the three trials. The third trial was the most complete prosecution yet, McAlexander said. Police: Effort there South Bend police Capt. Ronald Marciniak, who was chief of police at the time of the 1990 murders, said detectives did everything they could to fully investigate the case. "Everything was done that could have been done," Marciniak said. "I'm very proud of all the people involved in that case. I think they put in 110 percent." The officer declined to say whether he believes the right man was arrested. But, after three trials, Marciniak said, he understands why prosecutors decided not to retry Allen and to stop "spinning wheels." "We have done what we have so far, and apparently it's not quite enough," Marciniak said. "A decision has to be made on the time and the effort and the expense that went into it."Staff writer Patrick M. O'Connell: poconnell@sbtinfo.com (574) 235-6357